Citation Nr: 21069950 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 14-28 435 DATE: November 22, 2021 ORDER Entitlement to service connection for emphysema, to include as due to in-service herbicide exposure, is denied. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to in-service herbicide exposure, is denied. Entitlement to service connection for hypertension, to include as due to in-service herbicide exposure, is denied. FINDINGS OF FACT 1. The evidence does not establish that the Veteran's emphysema, COPD or hypertension began during his active service or are otherwise causally related to his active service, to include related to his in-service herbicide exposure. 2. The evidence does not establish that the Veteran's hypertension began within one year of his separation from active service, or that it was caused by or is being aggravated by his service-connected diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for service connection for emphysema, including as due to in-service exposure to herbicides, are not met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for service connection for COPD, including as due to in-service exposure to herbicides, are not met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for service connection for hypertension, including as due to in-service exposure to herbicides, or as secondary to the service-connected diabetes mellitus, are not met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1959 to November 1966. He died in March 2015 and the appellant is his surviving spouse. VA has recognized her as the substituted appellant with regard to the matters on appeal, which were pending at the time of the Veteran's death. In October 2017, the appellant had a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. In April 2018, the Board issued a decision denying service connection for diabetes mellitus, hypertension, peripheral neuropathy of the right and left lower and left upper extremities, COPD, emphysema, asbestosis, and posttraumatic stress disorder (PTSD). The appellant appealed this decision to the Court of Appeals for Veterans Claims (Court). The Court then issued a Memorandum Decision in June 2019, which affirmed the Board's decision as to the asbestosis and PTSD claims, but vacated the Board's decision as to the remaining claims and remanded them to be readjudicated consistent with the decision. In April 2020, the Board remanded the issues for action in accordance with the Memorandum Decision. In particular, development of the factual evidence related to the Veteran's herbicide exposure was ordered. Following the remand, the Regional Office (RO) investigated the matter and, in May 2021, conceded that the Veteran was exposed to herbicides during his active service. The RO then issued a rating decision in August 2021 and granted service connection for diabetes mellitus, and for left upper extremity peripheral neuropathy and left and right lower extremity peripheral neuropathy. The issues related to service connection for emphysema, COPD and hypertension remain on appeal and are now again before the Board. SERVICE CONNECTION Generally, service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for a disease diagnosed after discharge, where all evidence, including that pertinent to service, establishes that the disease was incurred therein. 38 C.F.R. § 3.303(d). Service connection is warranted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, except chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early-onset peripheral neuropathy, which must manifest to a compensable degree within a year after the last date on which the veteran was exposed to an herbicide agent during active service. 38 C.F.R. § 3.307(a)(6)(ii). Certain chronic diseases, such as hypertension, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. As noted above, VA has recognized the Veteran's in-service exposure to herbicides. However, emphysema, COPD and hypertension are not subject to presumptive service connection for herbicide-exposed veterans under 38 C.F.R. § 3.307 and § 3.309. Service connection on this basis, therefore, is not warranted. There are no records during service or immediately after to suggest the onset of emphysema, COPD or hypertension during the Veteran's active service, or the onset of hypertension within the year immediately following his separation from service. In fact, on his July 2012 claim form, the Veteran reported the onset of hypertension and emphysema as having been in 2009, and the onset of COPD in 2010. His private treatment records show the Veteran was assessed as having HTN as early as October 2001, with "Tobaccoism" noted as a chronic condition by April 2002, and "COPD changes" first noted in a radiology report in October 2006. An October 2013 VA examiner confirmed the diagnosis of emphysema. These findings do not show that the claimed disabilities initially manifested during or within a year after the Veteran's active service. In fact, the Veteran did not claim during his lifetime that any of these conditions had their onset during his service; rather, his claim was limited to the theory that his claimed disabilities were a result of his herbicide exposure. This is with the exception of contentions related to asbestos related illness, which was previously decided by the Board and is no longer on appeal. The Veteran was afforded a VA examination in October 2013 and the examiner found there was no evidence that the Veteran's COPD and emphysema were related to his active service. This opinion was based upon the lack of evidence showing such a connection, as noted above. There was no examination opinion obtained during the Veteran's lifetime related to his hypertension; however, as noted, there is no indication of hypertension in service or within the year following the Veteran's separation. Hypertension was diagnosed during the Veteran's lifetime, but it was many years after his separation from service and the evidence does not suggest a causal connection exists between hypertension and any aspect of the Veteran's active service, to include his conceded in-service herbicide exposure. The Board recognizes that the appellant indicated at the time of her October 2017 Board hearing that she believed the Veteran's diabetes was due to his exposure to herbicides and that his hypertension was caused by the diabetes. The Veteran's now service-connected diabetes was diagnosed in approximately 2010. As noted above, hypertension was shown in his records many years before that. Thus, there is no basis in the record for concluding that the hypertension is a disability associated with the diabetes. In sum, there is no availability to presumptively service connect the Veteran's emphysema, COPD or hypertension based upon his exposure to herbicides. There is also no basis to service connect hypertension as a chronic disability diagnosed within one year of service, because it was, in fact, not diagnosed until many years later. Further, there is no other evidence to support an actual connection between the Veteran's emphysema, COPD or hypertension and his active service, to include the herbicide exposure. To the extent the Veteran believed during his lifetime, and the appellant currently believes, that the Veteran's emphysema, COPD, and hypertension are causally related to his active service, including the in-service herbicide exposure, or that the hypertension is related to the diabetes, they are not competent to determine causation. These issues are medically complex, and determining causation requires specialized medical education and experience, as well as the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to competent medical evidence summarized above, which does not suggest a causal relationship to service. Accordingly, the claims for service connection for emphysema, COPD and hypertension must be denied on both a presumptive and a direct basis. The claim for service connection for hypertension on a secondary basis is also denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the claims, so that doctrine is not applicable. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Adamson, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.